| Ellis v Eng |
| 2010 NY Slip Op 01453 [70 AD3d 887] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Shavon Ellis et al., Appellants-Respondents, v KennethEng et al., Respondents, and George Gusset, Respondent-Appellant, et al.,Defendants. |
—[*1] Dwyer & Taglia, New York, N.Y. (Peter R. Taglia of counsel), for respondent-appellant. Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner of counsel), forrespondents Kenneth Eng and Delphic Surgical Associates, P.C.
In an action to recover damages for wrongful death and pain and suffering allegedly arisingfrom medical malpractice, (1) the plaintiffs appeal, as limited by their brief, from (a) so much ofan order of the Supreme Court, Kings County (Dabiri, J.), dated July 17, 2008, as granted thosebranches of the motion of the defendants Kenneth Eng, Delphic Surgical Associates, P.C., NewYork University Medical Center, and Jed Kaminetsky which were for summary judgmentdismissing the causes of action based upon failure to refer the plaintiffs' decedent to anoncologist, failure to properly monitor the decedent for the recurrence of cancer, and failure toobtain the decedent's informed consent to forgo adjuvant therapy after surgery insofar as assertedagainst Kenneth Eng and Delphic Surgical Associates, P.C., and granted those branches of theseparate motion of the defendant George Gusset which were for summary judgment dismissingthe causes of action based upon failure to obtain the decedent's informed consent to forgoadjuvant therapy and failure to refer the decedent to an oncologist insofar as asserted againsthim, and (b) so much of an order of the same court dated March 25, 2009, as denied their motionfor leave to renew and reargue, and granted the cross motion of Kenneth Eng and DelphicSurgical Associates, P.C., for reargument, and upon reargument, vacated the originaldetermination denying those branches of the motions which were for summary judgmentdismissing the cause of action alleging failure to recommend that the decedent receive adjuvanttherapy insofar as asserted against Kenneth Eng, Delphic Associates P.C., and George Gusset,granted those branches of the motions, and directed dismissal of that cause of action againstKenneth Eng, Delphic Associates P.C., and George Gusset, and (2) the defendant George Gussetcross-appeals from so much of the order dated July 17, 2008, as denied that branch of his motionwhich was for summary judgment dismissing the cause of action based upon failure to properlymonitor the decedent for the recurrence of cancer insofar as asserted against him. Thecross-appeal by George Gusset from so much of the order dated July 17, 2008, as denied thatbranch of his motion which was for summary judgment dismissing the cause of action basedupon failure [*2]to properly monitor the decedent for therecurrence of cancer insofar as asserted against him brings up for review so much of the orderdated March 25, 2009, as, in effect, upon reargument, adhered to the original determinationdenying that branch of his motion which was for summary judgment dismissing that cause ofaction insofar as asserted against him (see CPLR 5517).
Ordered that the appeal by the plaintiffs from so much of the order dated March 25, 2009, asdenied that branch of their motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the cross appeal by George Gusset from the order dated July 17, 2008, isdismissed, as the portion of that order cross-appealed from by him was superseded by so much ofthe order dated March 25, 2009, as, in effect, upon reargument, adhered to the originaldetermination denying that branch of his motion which was for summary judgment dismissingthe cause of action based upon failure to properly monitor the decedent for the recurrence ofcancer insofar as asserted against him; and it is further,
Ordered that the order dated July 17, 2008, is affirmed insofar as appealed from by theplaintiffs; and it is further,
Ordered that the order dated March 25, 2009, is affirmed insofar as reviewed; and it isfurther,
Ordered that the defendants Kenneth Eng and Delphic Surgical Associates, P.C., areawarded one bill of costs, payable by the plaintiffs and George Gusset.
On May 1, 2002, the defendant George Gusset performed a colonoscopy on the decedent,and found a cancerous lesion. He referred the decedent to the defendant Kenneth Eng, agastrointestinal surgeon. On May 21, 2002, Eng removed the lesion, which was diagnosed asstage IIB colon cancer. On June 7, 2002, Eng advised Gusset that the decedent would not requireadjuvant therapy (chemotherapy).
In August, September, and October 2002, the decedent continued to see Gusset, whomonitored his general physical condition, ordered blood tests, and purportedly was monitoringhim for the recurrence of cancer. Gusset did not advise chemotherapy. On October 3, 2002,Gusset recommended that the decedent return to work with no restrictions. Thereafter, thedecedent did not see Gusset for more than a year.
The decedent continued to see Eng through November 2003, for the monitoring of hissurgical wound. On December 1, 2003, the decedent returned to Gusset, and shortly thereafterwas diagnosed with inoperable cancer of the colon. The decedent died on May 4, 2004.
The administrator of the decedent's estate, in that capacity and individually, commenced theinstant action on April 28, 2005, against, among others, Eng, Eng's professional corporation,Delphic Surgical Associates, P.C. (hereinafter Delphic Surgical), and Gusset. The plaintiffalleged that Eng and Gusset departed from accepted standards of medical care by failing torecommend that the decedent receive adjuvant therapy, failing to obtain the decedent's informedconsent to forgo such therapy, failing to refer the decedent to an oncologist for follow-up care,and failing to properly monitor the decedent for the recurrence of cancer.
Eng, Delphic Surgical, New York University Medical Center, and Jed Kaminetsky movedfor summary judgment, and Gusset separately moved for summary judgment. The order appealedfrom dated July 17, 2008, inter alia, granted summary judgment dismissing the causes of actionagainst Eng, Delphic Surgical, and Gusset based upon a failure to obtain the decedent's informedconsent to forgo adjuvant therapy, and failure to refer the plaintiffs' decedent to an oncologist forfollow-up care, but denied summary judgment on the cause of action alleging failure torecommend adjuvant therapy on the ground that the plaintiff raised a triable issue of fact on thatissue. Summary judgment dismissing the cause of action alleging failure to properly monitor thedecedent for the recurrence of cancer was granted with respect to Eng and Delphic Surgical onthe [*3]ground that referring the decedent to Gusset for follow-upcare was sufficient. However, the Supreme Court found that Gusset failed to establish hisentitlement to judgment as a matter of law with respect to that cause of action.
The second order appealed from, dated March 25, 2009, inter alia, granted the motion of Engand Delphic Surgical for reargument, and upon reargument, granted summary judgmentdismissing the cause of action alleging failure to recommend adjuvant therapy against Eng,Delphic Surgical, and Gusset.
The elements of a cause of action sounding in medical malpractice are that there was adeviation or departure from good and accepted medical practice and that such a deviation ordeparture was a proximate cause of injury or damage (see Luu v Paskowski, 57 AD3d856, 857 [2008]). On a motion for summary judgment dismissing the complaint, a defendant hasthe burden of establishing the absence of a departure from good and accepted practice, or, ifthere was a departure, that the plaintiff was not injured thereby. Once that burden has been met, aplaintiff in opposition must submit the affidavit of a physician attesting to a departure from goodand accepted medical practice and that the alleged departure was a competent producing cause ofthe plaintiff's injuries (see Luu v Paskowski, 57 AD3d at 857; Taylor v NyackHosp., 18 AD3d 537, 538 [2005]).
In support of their separate motions for summary judgment, Eng, Delphic Surgical, andGusset established their prima facie entitlement of judgment as a matter of law by submittingevidence demonstrating that they did not depart from accepted standards of medical practice bytheir failure to recommend adjuvant therapy after the decedent's surgery, failure to obtain hisinformed consent for forgoing adjuvant therapy, and failure to refer him to an oncologist. Theirsubmissions included, inter alia, evidence that the clinical practice guidelines of the AmericanSociety of Clinical Oncology in 2002 did not support the use of adjuvant therapy for stage IIcolon cancer. In opposition, the plaintiffs failed to raise a triable issue of fact.
The plaintiffs contend that they were not required to show that clinical practice guidelinesrequired the recommendation of chemotherapy, since clinical practice guidelines "are merely onemethod of informing the opinion of a qualified medical expert." Although, in general, evidenceof guidelines is not conclusive, and such evidence is not a necessary element of a plaintiff's proof(see Hinlicky v Dreyfuss, 6 NY3d 636, 645 n 5 [2006]), in this case, the plaintiffs'experts relied on guidelines.
The plaintiffs' surgical expert claimed that, since 2000, the American Society of ClinicalOncology recommended chemotherapy for stage II patients with at least one poor prognosticindicator. Since the surgical expert's specialty was laparoscopic, trauma, and generalsurgery—not cancer surgery or gastrointestinal surgery—the expert was required tolay a foundation in support of the reliability of the opinions rendered (see Mustello vBerg, 44 AD3d 1018, 1019 [2007]), and could not rely upon conclusory assertions (seeRomano v Stanley, 90 NY2d 444, 452 [1997]). Since the foundation for the expert's opinionwas the guidelines cited, the validity of the expert's opinion was dependent on the validity ofthose guidelines. The plaintiffs' second expert—an oncologist—also referred toguidelines—this time of the "American Cancer Association [sic]"—whichwere not produced, and which the expert for Eng and Delphic Surgical claimed did not exist.Therefore, the guidelines of the American Society of Clinical Oncology were crucial to theplaintiffs' position.
The purported guidelines of the American Society of Clinical Oncology for 2000 are not inthe record. The recommendations of the American Society of Clinical Oncology for 2004 are inthe record. Those recommendations stated that even in 2004, there was no definite consensusthat adjuvant therapy was warranted for high-risk stage II colon cancer patients. Thus, there wasno proper basis for the opinion that failure to recommend adjuvant therapy in 2002 was adeparture from accepted medical practice.
The plaintiffs further contend that a Frye hearing (see Frye v United States,293 F 1013 [DC Cir 1923]), would be appropriate to ascertain the reliability of the plaintiffs'evidence that chemotherapy should have been recommended. A Frye hearing is used todetermine whether the expert's methodologies in arriving at a conclusion are accepted as reliablewithin the scientific [*4]community; for example, whether theexpert's methodologies in determining the stage of the patient's cancer are sufficiently acceptedas reliable to permit the expert to testify as to his or her results (see Page v Marusich, 51AD3d 1201 [2008]). However, where, as here, the challenge is to the reliability of the expert'sconclusions, not whether the expert's methodologies or deductions are based upon principles thatare sufficiently established to have gained general acceptance as reliable, there is no basis for aFrye hearing (see Lipschitz v Stein, 65 AD3d 573, 576 [2009]; Nonnon vCity of New York, 32 AD3d 91, 103 [2006], affd 9 NY3d 825 [2007]).
With respect to the plaintiffs' cause of action alleging lack of informed consent for forgoingadjuvant therapy, an element of a cause of action based upon lack of informed consent is "someunconsented-to affirmative violation of the plaintiff's physical integrity" (Hecht vKaplan, 221 AD2d 100, 103 [1996]). Public Health Law § 2805-d (3) states that "[f]ora cause of action therefor it must . . . be established that a reasonably prudentperson in the patient's position would not have undergone the treatment or diagnosis if hehad been fully informed" (emphasis added). Lack of informed consent does not apply where, ashere, injuries allegedly resulted from a failure to undertake a procedure or a postponing of aprocedure (see Jaycox v Reid, 5 AD3d 994, 995 [2004]).
Eng made a prima facie showing, as a matter of law, that he did not depart from acceptedmedical practice in referring the monitoring of the decedent's condition to Gusset (seeWasserman v Staten Is. Radiological Assoc., 2 AD3d 713, 714 [2003]; Bettencourt vLong Is. Coll. Hosp., 306 AD2d 425, 426 [2003]). In general, a physician's duty to thepatient "may be limited to those medical functions undertaken by the physician and relied on bythe patient" (Chulla v DiStefano, 242 AD2d 657, 658 [1997]). In response to Eng's primafacie demonstration of entitlement to judgment as a matter of law on this issue, the plaintiffsfailed to raise a triable issue of fact. Although there is case law to the effect that joint liabilitymay be imposed upon the referring physician where "the referring physician was involved indecisions regarding diagnosis and treatment to such an extent as to make them his or her ownnegligent acts" (Mandel v New York County Pub. Adm'r, 29 AD3d 869, 871 [2006];see Reyz v Khelemsky, 44 AD3d 640, 643 [2007]), in this case, Eng did not undertake tomonitor the decedent's general condition and left that function to Gusset. Gusset, not Eng,ordered blood tests subsequent to surgery, and monitored the decedent's general symptoms.Under the circumstances, the Supreme Court properly denied that branch of Gusset's motionwhich was for summary judgment dismissing this cause of action (see Schaub v Cooper,34 AD3d 268, 271 [2006]; Wong v Tang, 2 AD3d 840 [2003]).
That branch of the plaintiffs' motion which was for leave to renew was properly denied,since there was no reasonable justification for failing to submit the purportedly new evidence inopposition to the original motions (see CPLR 2221 [e]; Brown Bark I, L.P. vImperial Dev. & Constr. Corp., 65 AD3d 510 [2009]).
The parties' remaining contentions are without merit, or need not be addressed in light of ourdetermination. Rivera, J.P., Leventhal, Belen and Austin, JJ., concur. [Prior Case History:2008 NY Slip Op 32107(U).]